Bruno lawyers seek dismissal of charges

"Outdated version" of statute used against ex-senator, attorneys say

Updated 9:39 pm, Thursday, October 4, 2012

ALBANY — Attorneys for former state Senate Majority Leader Joseph L. Bruno said the federal government's theory behind a superseding indictment of their client is "fatally flawed" and have asked a federal judge to dismiss the charges.

In a motion filed Thursday in U.S. District Court in Albany, attorneys for Bruno also said the government's superseding indictment was filed after a statute of limitations expired and should be dismissed on technical grounds. The attorneys also attacked what they characterized as a shifting government theory in which the Brunswick Republican is now charged with a crime, bribery, that prosecutors had "previously disavowed." The U.S. Attorney's office has been given a month to respond to the motion. If the defense motion fails, Bruno is scheduled for trial beginning Feb. 3 in Albany on two counts of felony mail fraud.

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Bruno, 83, was regarded as a charismatic and fiery senator who rose through the ranks of the Legislature during a Senate career spanning more than three decades. He has largely faded from public view since his 2009 conviction on two counts of honest services fraud, which came a year after he abruptly resigned his Senate position in the midst of an intensifying FBI investigation of his private business dealings.

His controversial conviction was vacated last year by a midlevel federal appeals court in the wake of a U.S. Supreme Court ruling that honest services fraud must include an underlying act of bribery or kickback. It was an argument Bruno's attorneys had made prior to his trial.

But the vacated conviction was only half of what Bruno sought in his appeal. The federal panel also ruled the Justice Department could seek a superseding indictment and on May 3 a federal grand jury in Albany handed up a new indictment against Bruno that includes bribery charges.

Bruno's attorneys argue in their latest motion that the Justice Department relied on an "outdated version" of a federal statute that required them to obtain a superceding indictment within 60 days of the appellate ruling last fall. It's unclear how the government will respond to that assertion.

Bruno's attorney, William J. Dreyer of Albany, who is co-counsel with E. Stewart Jones of Troy, wrote in his motion that the indictment "impermissibly and significantly broadens the scope of the original indictment" while adding "a theory of prosecution that the government abandoned."

Bruno is accused of depriving the state of his honest services by allegedly using his political leverage to benefit a business associate and friend, Jared E. Abbruzzese of Loudonville.

Bruno's dealings with Abbruzzese led to his conviction at his first trial, which ended in December 2009.

The midlevel appeals court rejected Bruno's arguments that he not face a second trial and ruled there was enough evidence to support a new indictment.

In May 2010, U.S. District Chief Judge Gary L. Sharpe had sentenced Bruno to two years in prison but allowed Bruno to remain free pending appeal. The sentence was later vacated when Bruno's conviction was overturned.

The pending charges allege Bruno received $440,000 in payments from Abbruzzese that were "disguised as 'consulting' payments with $80,000 in payments for a virtually worthless horse."

The investigation of Bruno, called Operation Green Pastures, began in late 2005 when FBI agents started examining his use of private jet aircraft supplied by Abbruzzese, his horse-breeding partner. Abbruzzese flew Bruno to Kentucky horse country, New York City and exclusive Florida golf resorts — including trips that were largely bankrolled by Abbruzzese.

Bruno's first trial revealed that he routinely used Senate resources, including attorneys, secretaries and equipment, to run his private consulting business.